Bangalore District Court
(Represented By The Learned App) vs Used Filthy Language Even Against Her ... on 28 July, 2020
1 cc 24789 of 2016
IN THE COURT OF XLI (41ST) ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU
DATED THIS THE 27TH DAY OF JULY 2020
PRESENT
SRI S.S.BHARATH M.A. LL.M.,
XLI (41ST) ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
BENGALURU
CRIMINAL CASE NUMBER 24789 OF 2016
BETWEEN
1. STATE represented by
Kormangla Police. ....COMPLAINANT
(Represented by the learned APP)
AND
1. SHIVU @ SHIVAKUMAR,
S/o. William,
Aged about 25 years,
No.271, A.K.Colony,
08th Block, Koramangala,
Bengaluru.
2. MAHESH @ MAHESH KUMAR,
S/o. William,
Aged about 23 years,
No.271, A.K.Colony,
08th Block, Koramangala,
Bengaluru. ....ACCUSED
(Represented by Sri K.V.Prakash, Advocate)
KORMANGLA POLICE HAVE CHARGE SHEETED BOTH
THE ACCUSED FOR THE OFFENCES PUNISHABLE
2 cc 24789 of 2016
UNDER SECTIONS 354, 325, 504, 509 READ WITH
SECTION 34 OF IPC.
AFTER COMPLETION OF ADJUDICATION, THIS CASE
COMING ON FOR JUDGEMENT, THIS DAY, THE COURT
DELIVERED THE FOLLOWING...
Offences alleged u/s : 354, 325, 504, 509
R/w. section 34 of IPC
Charge sheet filed on : 21-09-2016
Trial commenced on : 04-09-2017
Trial completed on : 04-07-2019
Judgment date : 27-07-2020
Total duration : Days-Months- Years
23 10 04
JUDGMENT
1. Case of the prosecution is as under;- It is alleged that on 21/09/2016, a complaint in writing came to be submitted to aforementioned police by the PW.1 herein alleging that, on 21/09/2016, at about 01.00 p.m. when PW.1 was there at her house with PW.2, the accused being her neighbors have come near her house and picked up a quarrel in the backdrop of previous enmity as a complaint prior to the present one was submitted by PW.1 against them in the said police station. Both accused scolded them using filthy language and held PW.1 and dragged her, 3 cc 24789 of 2016 punched her, further assaulted her with bare hands. The PW.2 questioned their illegal act. But, both accused used filthy language even against her and they held her hands, dragged her, punched on her nose and therefore she suffered injuries. Both accused acted against them in the nature of outraging their modesty. PW.1 registered first information statement. The aforementioned police registered the first information report in Cr.No.454/2016 against both accused for the offences aforementioned.
2. The investigation officer visited the spot, drew the mahazar and seized the articles and recorded the statements of the witnesses. Upon completion of his investigation, he charge sheeted the accused for the offences aforementioned.
3. This court took the cognizance of the offences punishable under sections 354, 325, 504, 509 R/w section 34 of IPC. As per the directions of the court, 4 cc 24789 of 2016 CC.No.24789 of 2016 came to be registered. In compliance of section 207 of Cr.P.C, the copies of the charge sheet and other prosecution papers came to be supplied to the accused.
4. The court, after being satisfied as to existence of materials against the accused to proceed further in this matter, framed the charge, read over the same to the accused in Kannada language in which they claim to be conversant with. But they did not plead guilty and they claimed then, to be tried. Therefore, this court issued summons to the witnesses.
5. During trial, as could be seen from record, the prosecution failed to keep CW.6 to 9 present before the court for the purpose of trial. Therefore, this court considering more than sufficient opportunities already extended then in favour of prosecution; recorded the same reason and dropped said witnesses and proceeded further in the matter. 5 cc 24789 of 2016
6. To prove the case, the prosecution has examined as many as 05 witnesses (PW.1 to 5) and further relied upon Ex.P.1 to 4.
7. Soon after recording of statement of accused under section 313 of Cr.p.c, both accused did not choose to adduce evidence for their side. Therefore this court posted the matter for arguments and heard the learned APP and also heard the learned counsel appearing for the accused.
8. Taking into consideration the submissions made in the court then by learned APP and by the learned counsel appearing for the accused, the court posted this matter for judgment.
9. Following points arise for determination;-
1) Whether the prosecution proves beyond reasonable doubt that, on 21/09/2016, at about 1.00 p.m., when both PW.1 and 2 were there in the house belongs to PW.1 which is situated within the limits of Kormangala Police Station, at 08th Block, 6 cc 24789 of 2016 Adiparashakthi Temple Road, both accused in the backdrop of previous compliant came to be submitted by PW.1 in the said police station dated 18/09/2016, have picked up the quarrel with PW.1 and used criminal force, held her hands, scolded her in filthy language, dragged her and assaulted her using bare hands, and at that point of time when PW.2 tried to pacify the quarrel questioning their illegal act, they held PW.2 as well using criminal force, dragged her, used filthy language to scold her and assaulted her by punching on her nose thereby both PW.01 and 02 suffered injuries, therefore both accused are guilty of the offence punishable U/s.354 of IPC r/w section 34 IPC as they outraged their modesty in the said manner?
2) Whether the prosecution further proves beyond reasonable doubt that, on above stated date, time and place, for the said reason, the accused No.1 and 2 have voluntarily caused grievous hurt as above to both PW.01 and 02, thereby they are guilty of the offence punishable U/s.325 of IPC r/w section 34 IPC?
3) Whether the prosecution further proves beyond reasonable doubt that, on the aforementioned date, time and place for the said reason, both accused No.1 and 2 picked up the quarrel in the manner stated herein above with an intention to insult both PW.1 and 2 together with an intention to provoke the breach of peace, thereby 7 cc 24789 of 2016 scolded them in a filthy language, thus both the accused are guilty of the offence punishable U/s.504 of IPC r/w section 34 IPC?
4) Whether the prosecution further proves beyond reasonable doubt that, on the aforementioned date, time and place for the said reason, the accused No.1 and 2 have insulted the modesty of both PW.1 and 2 thereby uttered some words, made some sounds and gestures exhibiting some object intending that the act of said nature would intrude on the privacy of both PW.1 and 2 and thereby they are guilty of the offence punishable U/s.509 of IPC r/w section 34 IPC?
5) what order ?
10. Above points are answered as under;- Points' no.01 to 05: In the Negative Point no.06: As per final orders for the following;
REASONS The prosecution is duty bound to prove the guilt alleged as above against both accused No.1 and 2. The burden to prove the aspects stated herein above against both the accused, heavily lies upon the prosecution. 8 cc 24789 of 2016 The points aforementioned are hereby taken up for discussion one by one.
11. Point no.01;- The IO as aforesaid has charge sheeted both accused No.1 and 2 for the offences aforementioned. It is the case of the prosecution that both accused No.1 and 2 have picked up a quarrel with PW.1 keeping previous enmity in their mind. It is stated that, PW.1 has filed one more compliant in the police station dated 18/09/2016. For the said reason, keeping enmity against Pw.01 both the accused went near the house belongs to PW.1 on 21/09/2016 and picked up the quarrel and created a scene therein in the aforesaid manner and therefore they are guilty of the offences punishable under the provisions of IPC stated herein above.
12. Prosecution examined both PW.1 and 2 who are none other than the first informant and the friend of first informant. PW.1 has clearly deposed that PW.2 is her friend and both of them work together at Spandana 9 cc 24789 of 2016 Hospital at Kormangala. Accused are her neighbors. She had submitted case on 18/09/2016 against accused. Therefore they had evil intention against her and on 21/09/2016 at about 1.00 p.m. when she with PW.2 was there in her house at Kormangala, accused have come near her house, scolded her in filthy language and accused No.1 held her, dragged her and punched upon her nose using fist and she suffered injury. PW.2 tried to pacify the quarrel but the accused scolded her also using filthy language. It is deposed further by PW.1 that after the incident she had been to Saint Johns' Hospital at the advice of Koramangala police. Thereafter, they registered first information in Koramangala Police Station. She identified the first information statement and it got marked as Ex.P.1 and her signature got marked as Ex.P.1(a).
13. As could be seen from the deposition of PW.1, it is clear in this court that, she has affixed her signature 10 cc 24789 of 2016 even upon Mahazar (Panchanama). She identified it during the trial and it got marked as Ex.P.2 and her signature got marked as Ex.P.2(a).
14. Further, in her examination in chief, she has deposed that, she has affixed her signature upon Ex.P.2 in the Police Station. However, she has been considered partially hostile to the case of the prosecution. Therefore at the request of learned APP, this court permitted to cross-examine her.
15. During the cross-examination conducted by learned APP she has answered that Ex.P.2 was prepared as on the date of the alleged incident and police have reduced mahazar process in to writing. It came to be drawn by them at the spot alleged. She has affixed her signature to it at the spot and the suggestions to the above effect came to be admitted to be true, by her. 11 cc 24789 of 2016
16. As could be seen from her cross-examination conducted by the learned counsel appearing for the accused, she has answered that, she does not reside with her husband and she does not own any pet Dog. But she feeds the stray dog.
17. In her cross-examination, the defense against this case, put forward by the accused could be seen. It is their defense that she does not take care of her pet Dog in a proper manner and it bites the pedestrians and others who move on the road in front of her house and therefore she has no healthy relationship with her neighbors. It is suggested further that after registration of the present case, her pet Dog has bit the accused No.2 herein as well. However the said suggestion came to be denied as false.
18. Many questions regarding the date and time of the alleged incident and the presence of other neighbors including the members of the public at the alleged 12 cc 24789 of 2016 spot, as on the alleged time etc, came to be put on PW.1. She has answered that, police did not enquire her regarding the accused when she registered FIS. During the alleged incident, in her house, she together with her father and PW.2 was present in her house and at that point of time having heard the noise from her house her neighbors including relatives gathered there and she rushed to police station soon after the incident at about 02.00 p.m. on the same day. But police advised her to obtain treatment from hospital and thereafter registered the FIS. She complained as to the said incident orally before the police and they reduced it into writing and she had been to hospital at about 02.30 p.m. on the said date.
19. However she denied the suggestions of the learned counsel appearing for the accused that accused did not trouble her, did not scold her, did not assault her etc. One more suggestion could be seen in her cross examination, put forward by the counsel for accused 13 cc 24789 of 2016 as a defense that she fell down from her two wheeler and suffered injuries, but, she used those injuries to file this false case. However she denied the said suggestion as false. Apart from the above, nothing much has been elicited during her cross-examination by the learned counsel appearing for the accused.
20. As could be seen from the examination of PW.2, it is clear that, she is none other than a lady namely Lakshmidevamma who is stated to be a friend of PW.2 who was allegedly present with PW.1 during the alleged incident. She also deposed in her examination in chief that, she works with PW.1 in Spandana Hospital as home nurse and the accused are the neighbors of PW.1. Before registration of the present case, she had good terms with accused. But on 18/09/2017, accused quarreled with PW.1, therefore, PW.1 registered a case in the Police Station against them on the said date. On 21/09/2017, at about 1.00 p.m. when she was with PW.1 in her house, both 14 cc 24789 of 2016 accused have come near the house of PW.1 and started scolding her in a filthy language and assaulted her. She tried to pacify the quarrel but accused No.1 punched her on her nose and scolded her and thereafter both of them rushed to Kormangala Police Station. Thereafter, they took treatment in Saint John's Hospital and after returning to the said Police Station, PW.1 registered the FIS regarding the above incident.
21. As could be seen from the cross-examination of PW.2, many questions similar to the questions posed upon PW.1 during her cross examination came to be put upon PW.2 as well. However she denied all the suggestions put forward on her in the form of above sort of defense, as false. Further she pleaded her ignorance regarding the number of persons allegedly present during the alleged incident. However she deposed specifically that, when the incident took place, it was 01.00 p.m. of the said date and when 15 cc 24789 of 2016 PW.1 and she had been to Police Station for the purpose of registering FIS, it was 10' o clock in the night. They had been to the police station soon after the incident but as per the advice of the police, they took treatment first and thereafter they registered FIS. Police did not enquire her regarding the accused. When she had been to hospital, it was about 2.00 p.m. and they stayed up to 9.00 p.m of the same day and a women police accompanied them to the hospital. On the very same date on which the incident allegedly taken place, they had been to the spot at the instance of the police and they stayed there about 10 minutes.
22. She specifically denied the suggestion of the learned counsel appearing for the accused that PW.1 owns a pet Dog in her house. She answered further that, she feeds stray dog. She further denied the suggestion as false that, said dog bit accused No.2 as well that too after registration of this case and in respect of the 16 cc 24789 of 2016 said Dog there were exchange of words amongst PW.1 and her neighbors and therefore PW.1 does not maintain good relationship with her neighbors etc.
23. AS could be seen from the record, PW.3 and 4 are none other than the witnesses for mahazar alleged to have been drawn by the police at the spot alleged in the case. Both the above witnesses have supported the version of the prosecution and they deposed specifically that in their presence only the police have drawn mahazar and took their signatures upon the panchanama at the spot itself.
24. However during the cross-examination of PW.3, he has admitted that, he does not know as to the contents of Ex.P.2-mahazar and police have not read it in his presence and it came to be written by one Suresh the P.I and at the instance of Police only he has affixed his signature upon Ex.P.2. 17 cc 24789 of 2016
25. However in his further cross-examination he has clarified that he himself had been to the spot and participated in the mahazar during 01.30 to 2.00 p.m of the said date. However he denied the suggestion of the counsel appearing for the accused that PW.1 is her friend. But he answered further that PW.1 is not her friend, but he is acquainted with her only. Apart from the above answers, nothing much has been elicited from learned counsel appearing for the accused in her cross-examination.
26. PW.4 is one Srinivas. He also has answered similarly to P.W-03. However PW.4 has answered further that he does not know the contents of Ex.P.2-mahazar. Police also have not read it in his presence and at the instance of police only he affixed his signature on Ex.P.2. Apart from above, nothing much has been elicited by the learned counsel appearing for the accused.
18 cc 24789 of 2016
27. PW.5 is none other than the father of PW.1 and he has deposed in his examination in chief that, PW.1 is his daughter and PW.2 is the friend of PW.1. On the said date at about 01.00 p.m. he was therein in his house. He rushed to the spot after hearing a noise. The accused was indulged in giving a punch using his fist to PW.2 and she was bleeding blood from her nose.
28. He has adduced strange evidence in his examination in chief, that, with respect to a stray dog, previously his daughter-P.W.01 and accused were indulged in a quarrel and in the said backdrop the accused have assaulted both his daughter-PW.1 and her friend PW.02 on the said date.
29. Therefore PW.5 has been considered partially hostile and it is worth to note herein that, only in respect of an assault alleged to have been made by both the accused upon PW.2, the PW.5-the father of PW.01 has adduced his evidence. In his evidence he has not 19 cc 24789 of 2016 deposed a single word or whispered, relating to the alleged assault took place at the instance of accused upon PW.1.
30. During the cross-examination conducted by the learned APP he denied the suggestions that previously also his daughter has filed a complaint against the accused and keeping in mind the said incident the accused have picked up the quarrel afresh with his daughter in her house, thereby scolded her in filthy language, dragged her, outraged her modesty, assaulted her etc. Learned APP did not elicit any favorable answers from PW.5 during his cross- examination.
31. Further, in the cross examination conducted by the learned counsel appearing for the accused, PW.5 denied the suggestion as false to the effect that, no incident alleged by the prosecution has taken place therein.
20 cc 24789 of 2016
32. Apart from above evidence, nothing much is available on record which is incriminating in nature against both the accused. PW.1 has clearly deposed during her examination that when the alleged incident took place, she together with her father and PW.2 was there in her house. Therefore, as it being not disputed by the accused throughout the case the presence of PW.2 and father of PW.1 at the alleged spot together with P.W-01, the point which this court can believe is the presence of both PW.2 and father of PW-01 together with PW-01. But the presence of the persons deposed by PW.1 alone does not prove incident alleged by the prosecution.
33. Because as expressed herein above, the burden is upon the prosecution to prove that the modesty of both the PW.1 and 2 has been outraged as the accused No.1 and 2 have misbehaved with them in the said manner. The prosecution shall prove beyond reasonable doubt that, both accused No.1 and 2 have 21 cc 24789 of 2016 assaulted the PW.1 and 2 using criminal force with an intention to outrage their modesty.
34. The structure of the case of the prosecution has been shaken by the evidence adduced by the father of the PW.1 i.e., PW-05. Because the prosecution has alleged that, keeping in mind the previous enmity as to the complaint registered by PW.1 on 18/09/2017 both accused had been to the house of PW.1 and picked up the quarrel and assaulted her, scolded her in filthy language in the manner stated herein above. But PW.5 being the father of PW.1 has deposed that, the quarrel took place between them in the backdrop of a dispute prevailing amongst them in respect of a stray Dog. Therefore the said sort of evidence adduced by PW.5 has taken away the strength of evidence adduced by PW.01 and 02 and the evidence adduced by the witnesses for mahazar the PW.03 and 04. 22 cc 24789 of 2016
35. Though the prosecution has alleged that the above act of the accused has taken away the reputation of both PW.1 and 2 in the locality and because of their act the modesty of both PW.1 and 2 have been outraged, still both PW.1 and 2 only did not adduce any evidence to the effect that because of the act of both accused No.1 and 2, their modesty has been outraged. They have not even adduced any evidence to the effect that as the accused assaulted them using a criminal force with an intention to outrage their modesty, they suffered the crime.
36. Therefore the prosecution has failed to adduce evidence to the effect that the alleged assault made with alleged criminal force was intended to outrage their modesty. Though the PW.1 is the prime person for the purpose of this case of the prosecution, she herself has turned partially hostile to the case of the prosecution and she, as expressed hereinabove has answered that she affixed her signature in the police 23 cc 24789 of 2016 station to Ex.P.2-the mahazar. Though she might have admitted in the cross-examination conducted by the learned APP that she had been to the spot of alleged incident allegedly occurred at the instance of both accused and she affixed her signature on the spot to panchama etc, still her evidence adduced as above as to her signature affixed on panchanama, has shaken the strength of the case of the prosecution.
37. Therefore the evidence available on record does not suffice to say that the prosecution is successful in proving the guilt alleged against both the accused particularly in respect of the alleged offence which is punishable U/s.354 of IPC.
38. Moreover the evidence of both PW.02 and 05 has been very crucial. But, for all the above reasons collectively, their evidence does not help the case of the prosecution and their evidence does not prove the case of the prosecution at all.
24 cc 24789 of 2016
39. Because as per the case of the prosecution both PW.1 and 2 have suffered assault at the instance of the accused No.1 and 2 herein. Therefore they are victims. But their evidence did not indicate a single incriminating piece of evidence to believe that they have been put to a suffrage at the instance of accused and their act outraged their modesty.
40. Though in their cross-examination the counsel appearing for the accused did not elicit much dismantling their evidence, still PW.5 being the person admittedly as per the evidence of PW.1 was present at the spot at the time of alleged incident being the father of PW.01, but he has adduced a different evidence as to the reason behind the alleged incident.
41. Therefore the case appears to be very weak and moreover it appears from record that the prosecution did not show much interest during the trial, because, even after availing many chances to keep the 25 cc 24789 of 2016 witnesses CW.6 to 9 present in court for examination, prosecution failed to keep them present and thus the court has dropped those witnesses.
42. Even after that, till completion of arguments, there has been no effort from the prosecution side to examine them. Although the wound certificates are present on record, yet again it appears that there has been no effort from prosecution to use those documents. The prosecution did not try to get them marked during the evidence.
43. But though they specify some injuries of grave nature, thought they were certified to be fresh in nature as on the time of test conducted upon PW.1 and 2, still those papers also do not help the case of the prosecution to prove the case alleged against accused because they do not prove in this case the aspect that the PW.01 and 02 suffered those injuries at the instance of accused in the manner alleged by the 26 cc 24789 of 2016 prosecution, in view of scarcity of evidence to the said effect. Therefore point No.1 is hereby answered in the Negative.
44. Point no.02;- For all the above reasons collectively, though the prosecution has alleged that, at the instance of accused, the PW.1 and 2 have suffered grievous hurt and they suffered some injuries on their nose and other parts of their faces, still as there being no attempt from prosecution to get the wound certificates present on record marked, during the trial, this court cannot believe the contents of the same.
45. As there being no evidence on record to believe that, the injuries mentioned in the wound certificates have been suffered by both PW.1 and 2 in the manner alleged by prosecution, despite presence of wound certificates aforementioned, this court cannot believe them to be absolute and incriminating. 27 cc 24789 of 2016
46. Therefore, for the sake of arguments, although the injuries stated in the said wound certificates can be believed, still they cannot be believed to have been suffered at the instance of the accused. Therefore for want of incriminating evidence against both accused No.1 and 2 and for all the reasons stated herein above, the point No.2 is answered in the Negative.
47. Point no.3;- As the evidence of both PW.1 and 2, the evidence of PW.5 being silent on the point that the accused intended to provoke breach of peace and they have scolded both PW.1 and 2 in filthy language and there was an intentional insult upon them to provoke the breach of peace etc, for want of evidence and because of failure of the prosecution to prove the case to the said effect, point No.3 is hereby answered in the Negative.
48. Point no.4;- In so far as the case alleged against both accused No.1 and 2 for the offence punishable 28 cc 24789 of 2016 U/s.509 is concerned, the prosecution is duty bound to prove that the accused No.1 and 2 intended to insult the modesty of both PW.1 and 2, they being women, both accused No.1 and 2 uttered, showed gestures, exhibited such things with an intention that those things shall be seen by both PW.1 and 2 and they would intrude upon their privacy etc.
49. Neither PW.1 nor PW.2 adduced evidence in their examination regarding the aspects mentioned herein above which are the ingredients of section 509 of IPC. Mere filing of charge sheet alleging that the accused have committed offences U/s.509 of IPC does not suffice to prove the case. The prosecution should have adduced evidence in support of the report of an IO to prove that, the accused No.1 and 2 have committed an offence punishable U/s.509 of IPC.
50. For the purpose of clarity, section 509 of IPC is extracted as below.........
29 cc 24789 of 2016 Section 509 of the Indian Penal Code Word, gesture or act intended to insult the modesty of a woman.--Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.
51. It suffices to state that the prosecution has failed to prove that, the words, gestures, things allegedly used during the alleged incident by both accused No.1 and 2 upon both PW.01 and 02 and their alleged acts were intended to insult their modesty.
52. Therefore in view of lack of evidence and because of the failure of the prosecution to adduce the incriminating evidence on the said accusations, the case alleged against the accused in so far as the said offence has become very weak and there is nothing on record to state that the accused are guilty of the offence punishable U/s.509 of IPC. Therefore for all 30 cc 24789 of 2016 the above reasons point no.04 is hereby answered in the Negative.
53. Point no.5;- Therefore the circumstances warrant the orders against the prosecution and in favour of the accused for the above reasons collectively. Therefore point NO.5 is answered as herein under.
ORDERS Invoking section 248(1) of Cr.P.C, the accused no.1 and 2 are hereby acquitted of the offences punishable under sections 354, 325, 504, 509 R/w.34 of IPC and the bail bonds and surety bonds furnished by the accused will be in force till completion of appeal period, thereafter, they shall stand cancelled. (Dictated to the stenographer, typed by her, corrected by me and then pronounced in the open court today, that is on 27-07-2020) S.S.BHARATH XLI (41ST) ACMM, BENGALURU 31 cc 24789 of 2016
-ANNEXURES-
List of witnesses examined on behalf of prosecution: -
PW.1 : Shantakumar PW.2 : Lakshmidevamma PW.3 : Smt.Lakshmidevi. PW.4 : Srinivas. PW.5 : S.Ramayya
List of documents marked on behalf of the Prosecution:-
Ex.P.1 : Complaint Ex.P.2 : Panchanama Ex.P.3 & 4 : Statements
List of witnesses examined on behalf of accused :-
NIL List of documents marked on behalf of the accused : -
NIL S.S.BHARATH XLI (41ST) ACMM, BENGALURU